DOCTRINE OF LEGITIMATE EXPECTATION

Doctrine of Legitimate Expectation revolves around the relationship between a public authority and an individual.  This principle attained momentum with the rapid evolution of the freedom of an individual and the state.  This principle is a method to keep a balance between the two basic pillars of the society i.e. the public and the administration. Since the administration has been conferred certain powers by the constitution it also becomes important to keep a check upon these authorities that these powers are not misused. This principle is a component of Principles of Natural Justice as it safeguards the individuals against any arbitrariness or abuse of powers by the agency of the state. 

In National Buildings Construction Corporation v. S. Raghunathan (1998)7 SCC 66, it was held that this doctrine comprises of both procedural and substantive aspects of Law. The procedural part states that an opportunity of making representation shall be afforded to the aggrieved party and the substantive part is that substantive benefit must be granted if it accrues from such representation. This Doctrine originated in common law jurisdiction where Lord Denning propounded it in Sehmidt Vs Secretary of Home Affairs  [1969] 2 Ch 149, where he observed that, “an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest or I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say” The first attempt to establish the basic rules of this principle was made by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service 1995 [AC 374 (408 409)] where he stated that:-

  • The decision of the public authority must alter the right and obligations of a person which are enforceable by or against him.
  • The person is deprived of some benefit or advantage which has been he has been rightfully enjoying in the past or that he was assured by the authorizing body that such benefits will not be withdrawn without giving him a reasonable opportunity to make representation. 

In GNCT of Delhi v. Naresh Kumar 175 (2010) DLT 143, the Delhi High Court summarized the doctrine of legitimate expectation as follows:

  • Firstly, mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right.
  • Secondly, legitimate expectation may arise if (a) there is an express promise given by a public authority; or (b) because of acceptance of a regular practice, a claimant can reasonably expect it to continue; and (c) such expectation may be reasonable. 
  • Thirdly, for a legitimate expectation to arise, the decision of administrative authority must affect the person by depriving him of some benefit or advantage which he had in the past been permitted, by the decision maker, to enjoy and which he can legitimately expect to be permitted to continue, until some rational grounds for withdrawing it have been communicated to him.
  • Fourthly, if the authority proposes to defeat a person’s legitimate expectation, it should afford him an opportunity to make a representation in the matter. 
  • Fifthly, the doctrine of legitimate expectation permits the court to find out if the change in policy which is the cause for defeating the legitimate expectation, is irrational or perverse or one which no reasonable person could have made.

This doctrine is primarily based on two principles namely-

  1. Assurance of representation by the administrative authority- under the doctrine a person may have a reasonable and legitimate expectation that he shall be treated in a certain way to by the authority and such expectation may arise from any assurance which has been provided to him by that authority. In A.G. of Hong Kong vs NG Yuen Shin  (1983) 2AC, 629 P.C,  the government had given an undertaking that certain immigrants from Macau shall be treated in accordance with the procedure for illegal immigrants from anywhere except china but this was not complied with before the removal of the respondent from the colony was ordered. Hence the Privy Council quashed the removal order stating that the legitimate expectation was not fulfilled. In State of Kerala v. K.G. Madhavan Pillai (1988) 4 SCC 669,  a sanction was issued for the respondents to open a new aided school and to upgrade the existing schools, however, an Order was issued 15 days later to keep the previous sanction in abeyance. The Supreme Court ruled that the sanction had entitled the respondents with legitimate expectation and the second order violated principles of natural justice.
  2. Existence of some consistent past practice- a person can reasonably expect that a practice which has existed from a long time shall be followed in the future. In Council of Civil Service Unions and Others v. Minister for the Civil Service [1985] AC 374, the Prime Minister issued a notification that certain civil servants shall not be treated as members of Trade Union. The House of Lords held that these civil servants had a legitimate expectation as it was a well established practice that they shall be consulted before making any significant changes in their service. In Navjyoti Coop. Group Housing Society v. Union of India (1992) 4 SCC 477, the new criteria of allotment of land were challenged. In the original policy, the seniority with regards to allotment was decided on the basis of date of registration. Subsequently, a change in policy was made in 1990, changing the criteria for deciding seniority based on the date of approval of the final list. The Supreme Court was of the opinion that the Housing Societies were entitled to ‘legitimate expectation’ owing to the continuous and consistent practice in the past in matters of allotment. Court further elucidates on the principle stating that presence of ‘legitimate expectations’ can have different outcomes and one such outcome is that the authority should not fail ‘legitimate expectation’ unless there is some justifiable public policy reason for the same. 

EXPECTATION 

Legitimate expectation is different from the general expectations as it gives the locus standi to an individual to seek judicial interference in matters involving arbitrary exercise of powers by the public authorities. “the principle of legitimate expectation give the applicant sufficient locus standi to seek judicial review and that the doctrine was confined mostly to a might to fair hearing before a decision which resulted in negativing a promise or withdrawing an undertaking, was taken.” [G. Sreenivasan and others vs Principal, Regional Engineering, AIR 2000 Ori 56] However, it is not a legal right and only an expectation of benefit, remedy and relief that has generated from a promise made or an established practice.

 “The term ‘established practice’ refers to a regular, consistent predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established.” [2006 (8) SCJ 721]

 In Jitendra Kumar & Ors. Vs. State of Haryana & Anr AIR 1994 SC 988, it was held that legitimate expectation was not the same thing as anticipation. It was also different from a mere wish or desire or hope. Nor was it a claim or demand based on a right. A mere disappointment would not give rise to legal consequences. 

“The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Such expectation should be justifiably legitimate and protectable.”

Who Can Invoke this Principle? 

This principle can be invoked by a person who has dealings or transaction with such authority or any legal relationship with such authority. A total stranger to that authority cannot invoke this doctrine merely on the ground that the authority has a general obligation to act fairly. However, this doctrine does not give an absolute right to a particular person and does not give him scope to claim relief straightaway from the administrative authorities as no crystallized right is involved. In Karm Kumar v. Union of India & Ors MANU/DE/1792/2010, it was stated that after emphasizing that the burden was on the person who bases his claim on the doctrine of legitimate expectation to satisfy that there has been a representation or a past practice that has given rise to such expectation, it must be shown that the decision of the authority was arbitrary, unreasonable and not taken in public interest. In M. Chandrasekaran vs The Secretary, the court held that when the application of legitimate expectation is concerned, it is a well settled principle of law that the said principle is not a very strong right, but it based upon various other factors and it can be invoked incidentally. The doctrine of legitimate expectation can be invoked where there is an irreparable loss to the party and public interest does not suffer. 

Overriding Public Interest 

‘Legitimate expectation doctrine’ strengthens the power of the courts of Judicial Review. Using this as an instrument the courts examine the decision-making process being fair or not. Whether the expectation of the claimant is reasonable or legitimate is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant.[18] In N.Pappa Kannan v. The Collector, the court held that in contractual sphere as in all other State actions, the State and all its instrumentality have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law. A public authority possesses powers only to use them for public good.  In Sterling Computers Ltd. v. M.& N. Publications Ltd. 1993 SCR (1) 81, the court held that even in commercial contracts where there is a public element, it is necessary that relevant considerations are taken into account and the irrelevant consideration discarded.

Conclusion 

The Doctrine of Legitimate Expectation is not stated explicitly in any statute but is embedded in Article 14 of Indian Constitution. It does not give any legal right to an individual but gives him Locus Standi to opt for judicial review where he seems that he has not given an opportunity of making representation or where the principles of natural justice have not been adhered to by the authority. A person before invoking this principle should satisfy the courts that there existed a reasonable expectation due to the representation made by the authority or due to the long standing practice. The Court’s job is not to encroach upon the rights of decision making authority and it is to only analyze that the decision made was not arbitrary or unfair. This doctrine shall have no significance for the claimant if the decision made involves greater public interest or public policy. 

(Researched by Ms. Shailja Mishra – Intern, Edited by Lexstructor Editorial Team)

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